Construing International Climate Change Law as a Compliance Regime

Under the no-harm principle, states must prevent activities within their jurisdiction from causing extraterritorial environmental harm. It has been argued elsewhere that excessive greenhouse gas emissions (GHG) from industrial states constitute a breach of this principle and instigate state responsibility. Yet, the relevance of general international law for climate change does not obviate a need for more specific international climate change agreements. This article argues that the climate regime is broadly compatible with general norms. It can, furthermore, address a gap in compliance with general international law – namely, the systematic failure of industrial states to cease excessive GHG emissions and to provide adequate reparations. As a compliance regime, the international climate change law regime defines global ambition and national commitments and initiates multiple processes to raise awareness, set political agendas, and progressively build momentum for states to comply with their obligations under general international law.

I am most thankful to Alexander Zahar for a year-long conversation which led to the idea of this article. Preliminary reflections on the topic were presented at the workshop on enforcement in international law held at Peking University School of Law, Peking (China), 11–12 June 2016, and at the regional conference of the Asian Society of International Law in Hanoi (Vietnam), 14–15 June 2016; I am thankful to the participants for useful comments. I also received valuable advice from several anonymous peer reviewers. I am thankful to Roger Suen for research assistance. All errors remain mine.

Footnotes

I am most thankful to Alexander Zahar for a year-long conversation which led to the idea of this article. Preliminary reflections on the topic were presented at the workshop on enforcement in international law held at Peking University School of Law, Peking (China), 11–12 June 2016, and at the regional conference of the Asian Society of International Law in Hanoi (Vietnam), 14–15 June 2016; I am thankful to the participants for useful comments. I also received valuable advice from several anonymous peer reviewers. I am thankful to Roger Suen for research assistance. All errors remain mine.

1 See generally IPCC, Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the IPCC (Cambridge University Press, 2014).

2 Ibid., p. 13.

3 The share in total 2012 GHG emissions excluding land-use change and forestry: China (24.5%), the US (13.9%), the EU of 28 (9.8%), India (6.7%) and Russia (5.2%), computed by the author on the basis of data found in CAIT Climate Data Explorer of the World Resources Institute, available at: http://cait.wri.org.

4 Australia, Belgium, Canada, the Czech Republic, Kazakhstan, Korea, the Netherlands, Russia, Saudi Arabia, and the US, with 9.2% of the world’s population, account for 26.5% of the global GHG emissions excluding land-use change and forestry, as computed by the author on the basis of data found in CAIT Climate Data Explorer of the World Resources Institute, ibid.

17 The claim of this article is not that the climate law regime seeks only to promote compliance with pre-existing rules. The climate regime plays an important role in clarifying these rules in multiple ways, and these clarifications are likely to leave a durable trace in international law – for instance, by contributing to a better understanding of relevant rules of general international law.

18 Thus, most of the states that are taking quantified emissions limitation or reduction commitments under the second commitment of the Kyoto Protocol (as per the Doha Amendment, below) renounced the purchase and sometimes the use of any surplus assigned units from the first commitment period. See declarations in Annex II of Decision 1/CMP.8, Amendment to the Kyoto Protocol pursuant to its Art. 3, para. 9 (the Doha Amendment), UN Doc. FCCC/KP/CMP/2012/13/Add.1, 8 Dec. 2012, available at: http://unfccc.int/resource/docs/2012/cmp8/eng/13a01.pdf.

20 Support for such a view can be found in the award of the arbitral tribunal constituted under Annex VII of the UN Convention on the Law of the Sea (UNCLOS) (Montego Bay (Jamaica), 10 Dec. 1982, in force 16 Nov. 1994, available at: http://www.un.org/depts/los/convention_agreements/convention_overview_convention.htm), in Australia and New Zealand v. Japan (Southern Bluefin Tuna Case), 4 Aug. 2000, (2000) 23 RIAA 1, para. 52: ‘In the practice of States, the conclusion of an implementing convention does not necessarily vacate the obligations imposed by the framework convention upon the parties to the implementing convention. The broad provisions for the promotion of universal respect for and observance of human rights, and the international obligation to co-operate for the achievement of those purposes, found in Articles 1, 55 and 56 of the Charter of the United Nations, have not been discharged for States Parties by their ratification of the Human Rights Covenants and other human rights treaties’.

23International Law Commission (ILC), ‘Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’ (2006) 2(2) Yearbook of the International Law Commission, paras 5–10.

32 The application of the no-harm principle to damage to the global commons, which has ‘the potential to destroy all civilization and the entire ecosystem of the planet’, is suggested in Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, n. 6 above, para. 35.

35 ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts (Articles on State Responsibility), in Report of the ILC on the Work of its Fifty-Third session, Official Records of the General Assembly, Fifty-Sixth session, Supp. No. 10 (A/56/10), Ch. IV.E.2, Arts 1 and 2.

65 For a historical example, see Caracas Declaration of the Ministers of Foreign Affairs of the Group of 77 on the Occasion of the Twenty-Fifth Anniversary of the Group, Caracas (Venezuela), 21–23 June 1989, para. II–34. available at: http://www.g77.org/doc/A-44-361-E.pdf.

70 Statement of the US on Principle 7 of the Rio Declaration on Environment and Development, in Report of the UN Conference on Environment and Development, Vol. II: Proceedings of the Conference, UN Doc. A/CONF.151/26/Rev.1 (Vol. II) (1992), p. 17.

76 ILC, n. 23 above, para. 4. See also M. Koskenniemi et al., ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, Report of the Study Group of the International Law Commission, UN Doc. A/CN.4/L.682, 13 Apr. 2006, para. 88, noting that ‘the lex specialis principle is assumed to apply if “harmonious interpretation” turns out to be impossible, that is, to overrule a general standard by a conflicting special one’.

77 Decision 15/CP.7, Principles, Nature and Scope of the Mechanisms pursuant to Arts 6, 12 and 17 of the Kyoto Protocol, UN Doc. FCCC/CP/2001/13/Add.2, 10 Nov. 2001, available at: http://cdm.unfccc.int/EB/rules/modproced.html, recital 7 of which states: ‘recognizing that the Kyoto Protocol has not created or bestowed any right, title or entitlement to emissions of any kind on Parties included in Annex I’.

80 Declaration of the Government of Tuvalu upon Signature and Ratification of the Paris Agreement (22 Apr. 2016), available at: http://unfccc.int/paris_agreement/items/9444txt.php?utm=EchoboxAI&. Similar declarations on the Paris Agreement were made by Nauru and the Marshall Islands, and by multiple states on the occasion of the signature or ratification of the UNFCCC and the Kyoto Protocol.

85 Decision 1/CP.1, The Berlin Mandate: Review of the Adequacy of Article 4, Para. 2(a) and (b), of the Convention, Including Proposals related to a Protocol and Decisions on Follow-Up, UN Doc. FCCC/CP/1995/7/Add.1, 7 Apr. 1995, available at: http://unfccc.int/resource/docs/cop1/07a01.pdf#page=4.

91Shishlov, I., Morel, R. & Bellassen, V., ‘Compliance of the Parties to the Kyoto Protocol in the First Commitment Period’ (2016) 16(6) Climate Policy, pp. 768–782. Economic studies, however, suggest that the developed state parties to the Kyoto Protocol have, on average, emitted 7% or 8% less GHG than other states during that period: Grunewald, N. & Martinez-Zarzoso, I., ‘Did the Kyoto Protocol Fail? An Evaluation of the Effect of the Kyoto Protocol on CO2 Emissions’ (2015) 21(1) Environment and Development Economics, pp. 1–22; Aichele, R. & Felbermayr, G., ‘Kyoto and the Carbon Footprint of Nations’ (2012) 63(3) Journal of Environmental Economics and Management, pp. 336–354.

95 On the legal force of unilateral declarations, see ILC, ‘Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations’ (2006) 2(2) Yearbook of International Law Commission, pp. 160–166.

96 Kyoto Protocol, n. 12 above, Art. 3.1 (‘shall … ensure’).

97 Paris Agreement, n. 13 above, Arts 3 and 4.2. The wording of the Cancún Agreement regarding developed states (‘targets to be implemented’, para. 36) is ambivalent, although the pledges of developing states (‘actions to be implemented’, para. 49) appear more clearly as an obligation of means.

108 The Adaptation Fund created by the Kyoto Protocol, for instance, has committed less than US$400 million since its creation, according to information found on its website: https://www.adaptation-fund.org.

113 UNFCCC Secretariat, Compilation and Synthesis of Biennial Submissions from Developed Country Parties on their Strategies and Approaches for Scaling up Climate Finance from 2014 to 2020, UN Doc. FCCC/CP/2015/INF.1, 27 May 2015, para. 7, available at: http://unfccc.int/resource/docs/2015/cop21/eng/inf01.pdf.

I am most thankful to Alexander Zahar for a year-long conversation which led to the idea of this article. Preliminary reflections on the topic were presented at the workshop on enforcement in international law held at Peking University School of Law, Peking (China), 11–12 June 2016, and at the regional conference of the Asian Society of International Law in Hanoi (Vietnam), 14–15 June 2016; I am thankful to the participants for useful comments. I also received valuable advice from several anonymous peer reviewers. I am thankful to Roger Suen for research assistance. All errors remain mine.